## F I L E D United States Court of Appeals Tenth Circuit 

### December 19, 2005

Clerk of Court 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ARTHUR WILLIAMS, JR., Defendant-Appellant. No. 04-3180

Appeal from the United States District Court

for the District of Kansas (D.C. No. 03-CR-40112-01-SAC)
Kirk C. Redmond, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, and Ronald E. Wurtz, Assistant Fed eral Public Defender, on the briefs), Topeka Kansas, for Defendant-Appellant. James A. Brown, Assistant United States Attorney (E ric F. Melgren, United States Attorney, with him on the brief), Topeka, Kansas, f or Plaintiff-Appellee.

Before LUCERO , SEYMOURand HOLLOWAY , Circuit Judges.

SEYMOUR , Circuit Judge.-2-

Arthur Williams, Jr., entered a plea of guilty to o ne count of distribution of a mixture containing a detectable quantity of cocai ne in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). At sentencing, Mr. Williams’ guideline range was enhanced by two offense levels pursuant to U.S.S.G. § 2D1.1(b)(1) on the basis of the district court’s finding, by a preponderance of the evidence, that Mr. Williams possessed a dangerous weapon (a Sig Sauer 9mm pisto l) in connection with his drug trafficking offense. Incorporating the two-le vel enhancement, the court determined Mr. Williams’ guideline range was 70 to 87 months and sentenced him to 70 months incarceration. Mr. Williams advances two theories to support his contention that he was erroneously sentenced. He f irst claims the record evidence is insufficient to support increasing his sentence two offense levels for possession of a firearm pursuant to § 2D1.1(b)(1). He also ma intains the district court’s calculation of his sentence based on facts neither admitted by him nor proven to a jury beyond a reasonable doubt violates the Sixth A mendment. For the reasons stated below, we affirm.

I Mr. Williams was charged in a three count indictmen t on September 19, 2003. Each count asserted that he knowingly and in tentionally distributed a mixture or substance containing a detectable amountof cocaine base on three-3-

separate dates in September 2003. Mr. Williams sub sequently entered a guilty plea to the distribution offense that occurred on S eptember 2, 2003 (Count 1), in exchange for the government’s agreement to dismiss Counts 2 and 3. See Rec., vol. I at Tab 23 (Petition to Enter Guilty Plea and Order Entering Plea). The parties stipulated that the following facts support ed Mr. Williams’ plea: On September 2, 2003, a confidential informant (CI) who was working with officers of the Shawnee County Sheriff’s Departmentcontacted the defendant by telephone. During their conversation, the defendant agreed to sell the (CI) six rocks of cocaine for $100.00. Th ereafter, at the defendant’s direction, the CI went to the defendant ’s residence in Topeka, Kansas, where the CI purchased six small rocks of c ocaine for $100.00 as previously agreed. The rocks were later tested by the DEA and found to contain cocaine base. Id

. In anticipation of Mr. Williams’ sentencing, the pr obation office prepared a presentence report (PSR). According to the PSR, th e quantity of cocaine base distributed by Mr. Williams on September 2, 2003, w as .97 grams. On the basis of information provided by a confidential informant(CI), the PSR determined for relevant conduct purposes that Mr. Williams had dis tributed 1.22 grams of cocaine base on September 8; 1.3 grams of cocaine b ase on September 19, and 1.06 grams of cocaine base on October 1, 2003. In addition, the police had discovered 1.64 grams of cocaine in Mr. Williams’ apartment and car when they executed a search warrant on October 14, 2003. A d igital scale and a loaded 9mm Sig Sauer pistol were also found in Mr. Williams’ l iving room.-4-

Based on the drug quantities enumerated above, the PSR calculated Mr. Williams’ base offense level at 26. It recommended a two-level increase for possession of the firearm, see U.S.S.G. § 2D1.1(b)(1), and a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, resulting in a total offense level of 25. When combined with Mr. Williams’ crim inal history category of III, this offense level yielded a sentencing range of 70 to 87 months incarceration. Mr. Williams objected to the recommended two-level increase for possession of the firearm. He admitted possession but argued that the enhancement did not apply because “the gun was not truly proximate to the drugs” as no drugs were located in the room in which the g un was found; the small amount of drugs recovered at his residence “belies the likelihood they were being held for sale”; and the evidence showed he possesse d the gun solely for protection and in response to a robbery that occurred at his h ome on July 13, 2003. Rec., vol. I at Tab 27 (Objection to Presentence Report a nd Motion for Departure). The district court overruled Mr. Williams’ objection, f inding both that the government had established “a temporal and spatial relationshi p between the weapon, the drug trafficking activity, and the defendant,” and that Mr. Williams did not satisfy his burden of showing it was “clearly improbable” the w eapon was related to his drug offense. See id . at Tab 28 (Ruling on Objection to Presentence Rep ort); id ., vol. III at 13 (Sentencing Transcript). The district co urt adopted the recommendations-5-

of the presentence report and sentenced Mr. William s at the bottom of the guideline range to 70 months imprisonment.

II Mr. Williams first contends the court erred by incr easing his offense level for possession of the firearm under § 2D1.1(b)(1), arguing he presented evidence that it was clearly improbable the possession of th e pistol was connected to his offense of conviction. “We review a district court ’s interpretation of the Sentencing Guidelines de novo, and its factual find ings for clear error, giving due deference to the district court’s application of th e guidelines to the facts.” United
States v. Brown , 314 F.3d 1216, 1222 (10th Cir. 2003). Reversal i s merited only if “the court's finding was without factual supportin the record, or if after reviewing all the evidence we are left with the def inite and firm conviction that a mistake has been made.” United States v. Shewmaker , 936 F.2d 1124, 1130 (10th Cir. 1991) (citations omitted). Section 2D1.1(b)(1) concisely instructs that “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(1). The commentary to § 2D1.1 states, “[t ]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense.” U.S.S.G. § 2D1.1, c mt. n.3 (emphasis added).-6-

The government bears the initial burden of proving possession of the weapon by a preponderance of the evidence. United States v. Pompey , 264 F.3d 1176, 1180 (10th Cir. 2001). This burden is satisfied when th e government demonstrates that “a temporal and spatial relation existed between th e weapon, the drug trafficking activity, and the defendant.” Id . (quoting United States v. Roederer , 11 F.3d 973, 982 (10th Cir. 1993)). Indeed, “the government nee d only show that the weapon was found in the same location where drugs or drug paraphernalia are stored.” United States v. Zavalza-Rodriguez , 379 F3d 1182, 1186-87 (10th Cir. 2004) (quotation omitted); Roederer , 11 F.3d at 982-83 (“the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the trans action occurred”). This is so because “[p]ossession in the context of § 2D1.1(b)( 1) is . . . possession by proximity-constructive possession.” Zavalza-Rodriguez , 379 F.3d at 1187. If the government meets this initial burden, “the burden s hifts to the defendant to show that it is clearly improbable the weapon was connec ted with the offense.” Pompey , 264 F.3d at 1181 (citation and internal quotation s omitted). Mr. Williams expressly conceded he possessed the fi rearm. See Aplt. Br. at 9 (“Mr. Williams admitted to police that he had pos sessed the firearm for a couple of months”); Rec., vol. I at Tab 23 (“as Mr. Willia ms told the police at the time, he had the gun because he had been robbed”); id ., vol. III at 7 (“We don’t dispute-7-

where the gun was found, we don’t dispute the facts around the search of October 14th”); id . at 8 (“He had a gun in his apartment”). Moreover , because Mr. Williams did not dispute the 9mm pistol was “locate d in the living room on the couch with a pillow covering the pistol,” id. at 8, a “digital scale was located on the living room floor on the right hand side of a c hair,” id ., and “[f]our rocks of crack cocaine individually wrapped . . . [were] fou nd in plain view on the kitchen table,” id ., the government demonstrated that the 9mm pistol “was found in the same location where drugs or drug paraphernalia are stored.” Zavalza-Rodriguez , 379 F.3d at 1186-87. This established possession and proximity, and the burden shifted to Mr. Williams to demonstrate it was “clea rly improbable” that the firearm was connected to his drug trafficking offen se. Mr. Williams points out it is undisputed he was rob bed and beaten by unknown individuals in his apartment in July 2003. He further contends he obtained the firearm as a result of that incident a nd, thus, possessed the pistol merely for protection. The government does not con test Mr. Williams’ claim that he possessed the gun for protection. Instead, it a rgues that because Mr. Williams pled guilty to cocaine trafficking and had previous ly been robbed of drugs, he carried the gun for protection of both his person and his drug dealing enterprise

. Mr. Williams neither claims that he did not possess the gun during the commission of the crime to which he pled guilty northat his need for protection1 As explained above, the PSR determined that Mr. Wil liams’ base offense

level was 25 by relying on the sum of drug quantiti es (6.19 grams) he was responsible for distributing on five separate dates . Because he only admitted in his guilty plea to distribution of an unspecified q uantity of cocaine base on September 2, 2003, Mr. Williams contended in his op ening brief that the maximum offense level the district court could cons titutionally impose based on the drug quantity involved in his offense conduct w as 12. See U.S.S.G. § 2D1.1(c)(14) (base offense level 12 applies when of fense involves “[l]ess than 250 MG of cocaine base”). During oral argument, ho wever, Mr. Williams’ counsel conceded the facts which led to the court’s finding of drug quantity were undisputed and stated he therefore was no longer ra ising Sixth Amendment error as to that judge-found fact. -8- was unrelated to his drug trafficking activities. We therefore agree with the district court that Mr. Williams’ assertions on the ir face are simply insufficient to meet the burden of “clear improbability,” and that he possessed the gun within the meaning of § 2D1.1(b)(1).

III For the first time on appeal, Mr. Williams relied o n Blakely v. Washington , 542 U.S. 296 (2004), to contend his sentence violat es the Sixth Amendment, because a jury did not find, nor did he admit, fact s that would support the two-level firearm possession enhancement. 1 See United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005). After briefi ng was completed in this case, the Supreme Court decided United States v. Booker , 125 S. Ct. 738 (2005). The Court extended its holding in Blakelyto the federal-9-

sentencing guidelines, holding that the Sixth Amend ment requires “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 755-56. To remedy the constitutional infirmity of the guidelines, Booker invalidated their mandatory nature, requiring the d istrict court to consult them in an advisory fashion. Id . at 756-57 (severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). Although Mr. Williams has no t sought supplemental briefing to address Booker , raising the Sixth Amendment issue pursuant to Blakely in his opening brief is sufficient to invoke Booker

. See United States v. Trujillo-Terrazas , 405 F.3d 814, 817 (10th Cir. 2005); see also Booker , 125 S. Ct. at 769 (stating that “both [its] Sixth Amendment ho lding and [its] remedial interpretation of the Sentencing Act” must be appli ed to all cases on direct review). Consequently, we will apply the Sixth Ame ndment analysis of Bookerto this case. Because Mr. Williams did not object to the firearm enhancement in the district court on the basis of the Sixth Amendment, we review only for plain

error. See United States v. Yazzie , 407 F.3d 1139, 1144 (10th Cir. 2005) (objecting on sufficiency of evidence grounds does not preserve claimed Booker errors); see also Trujillo-Terrazas , 405 F.3d at 818; United States v. Dazey , 403-10-

F.3d 1147, 1173-74 (10th Cir. 2005). To establish plain error, Mr. Williams must demonstrate that the district court (1) committed error, (2) that the error was plain, and (3) that the plain error a ffected his substantial rights. If all these conditions are me t, a court reviewing the error may exercise discretion to correct it if the error seriously affects the fairness, integrity, or public reputati on of judicial proceedings. Dazey , 403 F.3d at 1174 (citations and quotation marks o mitted). Contrary to Mr. Williams’ argument, the district co urt’s sentence does not run afoul of his Sixth Amendment rights. Although the court’s finding that Mr. Williams’ possessed a firearm increased his offense level, that finding did not result in “a sentence exceeding the [statutory] max imum authorized by the facts established by [Mr. Williams’] plea of guilty” to t he underlying drug count. Booker , 125 S. Ct. at 756; see also Yazzie , 407 F.3d at 1144 (“Bookermade clear that it is the actual sentence, not the sentencing range, that must not be increased based upon judge-found facts in order to violate th e Sixth Amendment.”). The guideline range incorporating the § 2D1.1(b)(1) enh ancement for possession of a firearm was 70 to 87 months. If that enhancement w ere omitted from the court’s guidelines computations, causing a reduction in Mr. Williams’ offense level from 25 to 23, the applicable sentencing range would be 50 to 71 months. See U.S.S.G. Ch. 5, Pt. A. Mr. Williams received a 70-month sen tence - a sentence that was within both the 70 to 87-month range and the lesser50 to 71-month range. In other words, the district court’s finding that Mr. Williams possessed a firearm-11-

“did not increase his sentence beyond the maximum a uthorized by the facts” admitted by him in his plea agreement. Dazey , 403 F.3d at 1174. Accordingly, the district court did not violate Mr. Williams’ Si xth Amendment rights under Booker

. See United States v. Payton , 405 F.3d 1168, 1173 (10th Cir. 2005) (no constitutional error when judicially found facts have no constitutionally significant impact on defendant’s sentence). Nevertheless, the district court committed non-cons titutional error in treating the guidelines as mandatory, rather than a dvisory. See Yazzie , 407 F.3d at 1146. Mr. Williams has therefore established th e first two prongs of the plain error test. But he has not met his burden of estab lishing the test’s remaining requirements. We need not decide whether Mr. Willi ams has established the third prong because even if he has, he has not met the “d emanding” burden of establishing that the district court’s non-constitutional error “seriously affect[ed] the fairness, integrity, or public reputation of ju dicial proceedings.” GonzalezHuerta , 403 F.3d at 736; see also Yazzie , 407 F.3d at 1146. “A party that fails to raise an argument in the district court must show that allowing a nonconstitutional error to stand would be particularlyegregious and would constitute a miscarriage of justice.” Dazey , 403 F.3d 1178 (citations and internal quotation marks omitted); see also Yazzie , 407 F.3d at 1146 (“we will not notice a nonconstitutional error, such as the one in the case b efore us, unless it is both-12-

particularly egregious and our failure to notice th e error would result in a miscarriage of justice” (citations and internal quo tation marks omitted)). We have recognized that in most cases involving non-co nstitutional Bookererror the defendant will be unable to satisfy the final prong

. See Trujillo-Terrazas , 405 F.3d at 820-21 (acknowledging difficulty in establi shing final prong in cases involving non-constitutional Bookererror but finding that defendant had satisfied it). Mr. Williams has not met this high standard. Mr. Williams received a sentence within the nationa l norm as established by the guidelines, and there is no evidence support ing a lower sentence. See Gonzalez-Huerta , 403 F.3d at 738-39 (considering in final prong an alysis whether defendant received a sentence within guidelines/nat ional norm and whether record supported a lower sentence). Although the districtcourt sentenced Mr. Williams at the bottom of the guidelines range, there is not hing in the record to indicate the court was unhappy with the sentence or that it woul d have been inclined to impose a lower sentence had it realized it had the discretion to do so. United States v. Sierra-Castillo , 405 F.3d 932, 942 (10th Cir. 2005) (comments of sympathy towards a defendant’s circumstances do notin themselves demonstrate that “the sentence implicates the kind of fundament al fairness issues necessary to satisfy the fourth plain-error prong”). Even if a defendant can demonstrate that the distri ct court felt particular sympathy for him, and might impose a les ser sentence on-13-

remand, failing to correct [non-constitutional Book er error] would not impugn the fairness, integrity, and public repu tation of judicial proceedings. Indeed, a remand might do quite the op posite because another defendant convicted of an identical crime u nder identical circumstances could receive a different sentence fr om a less sympathetic judge. Trujillo-Terrazas , 405 F.3d at 821. Because objective consideration of the factors listed in 18 U.S.C. § 3553(a) does not counsel thata lower sentence be imposed, the record on appeal simply does not support the co nclusion that this case is one of the rare non-constitutional Bookererror cases requiring resentencing. For the foregoing reasons, we AFFIRM

.